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2021 (7) TMI 432 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - rebuttal of presumption - legally enforceable debt or not - offence punishable under Section 138 of N.I. Act took place or not - HELD THAT:- No doubt, the legal requirement of issuance of notice etc. have been complied. Further, the accused has not disputed the fact that the cheque belongs to him and bears his signature. As such, the presumption under Section 139 of the N.I. Act required to be drawn. However, it is not a conclusive presumption, but a rebuttable presumption. As per Section 139 of the N.I. Act, the complainant being the holder of the cheque and signature on the cheque having not been denied by the accused, the presumption shall be drawn that, the cheque was issued for discharge of any debt or other legal liability. However, the accused can rebut the said presumption regarding non-existence of liability, but at the same time, the complainant (prosecution) is required to prove his case beyond all reasonable doubt - the accused for rebutting presumption, need not to lead his own evidence and he can also rebut the presumption on the basis of the evidence placed by the complainant himself. The complainant has failed to establish his financial capacity to advance loan. Hence, it cannot be presumed that the cheque was issued in discharge of legally enforceable debt or liability. As such, the presumption under Section 139 of the N.I. Act stands rebutted and the accused by cross-examining the complainant, has rebutted the said presumption. As such, the appellant/complainant has failed to substantiate the contention that the cheque was issued towards legally enforceable debt, which is a mandatory requirement for attracting the offence under Section 138 of the N.I. Act. The learned Magistrate is justified in answering point under consideration in the negative - Appeal dismissed.
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